Tag Archives: elective share rules

Drafting Wills for British or American Clients with Assets outside the UK / USA

You are a British or American citizen but have assets abroad, let’s say in Germany, Austria, France, Italy or Spain. Your English solicitor or your American lawyer suggests you make a Will which deals only with your national estate, i.e. the Will is restricted in such a way that it shall only apply to your assets located within the UK or the USA. The lawyer tells you that you should set up separate Wills for your foreign assets.

Is this really the best approach?

Well, this approach is extremely risky, because if your British or American estate lawyer does not consider the effects of your English or American Will in these other countries, your survivors are almost certain to suffer harsh consequences in regards to foreign inheritance taxes, may have to go through expensive and tedious foreign probate proceedings and they may even be confronted with foreign succession rules they have never heard of before but which are now applicable to the estate, e.g. forced heirship, obligatory heirship, elective share rules for surviving spouses, children and even parents of the deceased. In other words: The British or American beneficiary (e.g. the surviving spouse) will have to share the German, Austrian or French estate with the children or even the parents of the deceased because the testator was unaware of the foreign intestate succession rules or the compulsory elective share statutes which exist in many countries, especially those influenced by the French Civil Code (“Code Napoleon”), inter alia Germany, Austria, Italy and Spain. But also Islamic countries. An overview of this “Forced Heirship” concept is available on Wikipedia.

Thus, the standard “make one separate will per jurisdiction and hope for the best” approach is only suitable for those who also prefer to jump into a swimming pool without checking first whether there is even enough water in it. Those who would rather prefer to protect their survivors from unnecessary foreign taxes, legal costs and endless probate proceedings might want to consult an expert on international will preparation and international inheritance tax mitigation.

Just one simple example: How to avoid 5,000 Euros in German probate and translation fees and nine months waiting for the German grant? The testator who owns property in Germany can, while still alive, issue a so called transmortal or postmortal power of attorney which allows the transfer of the German property upon death – without the need for German probate. This is only one of many options to make life easier for your executors and beneficiaries. More on how to avoid probate in this post: How to Access German Assets without having to go through German Probate

Surprise Visit from the Foreign Tax Man?

Foreign inheritance tax is an issue which is very often overlooked or simply ignored by British solicitors or American lawyers. Especially one constellation leads to trouble on a regular basis because common law succession lawyers do not have this issue on their checklist when preparing a Will: If the testator is British, lives in the UK and only has assets located within the UK, then there may still be foreign inheritance tax due if the beneficiary lives abroad, let’s say in Germany, France or Spain. This is due to the fact that many European countries levy tax not on the estate as such but instead tax each individual benefiary, similar to the concept of income tax. In other words: In spite of the British estate having already been taxed in the UK, the son, daughter or grandchild who receives all or part of the estate from his or her parent or grandparent will have to pay German, French or Spanish inheritance tax on top of British IHT. Whether this tax burden can at least be mitigated depends on whether there are double taxation treaties in place or whether the respective country at least offers unilateral relief (for Germany see here).

All these (any many other) problems often remain unaddressed when a British client who has either assets or relatives abroad discusses his or her Last Will and Testament with a British solicitor or accountant. Many solicitors merely recommend to the client to consult a foreign lawyer. This is not always helpful because, even if the client does, such a foreign lawyer then also only sees his / her side of the story, i.e. German, French or Spanish inheritance law. Such foreign lawyer is, however, usually unaware of British issues like nil-rate band, unlimited spouse exemption, deed of variation etc and may thus make suggestions which sabotage the British side of estate planning. In order to come up with a truly working international will, the lawyer drafting the will either needs to be an expert in both countries’ succession and tax laws or the lawyers from the various countries need to team up. This may not be cheap but it is still better than to be unaware of foreign inheritance taxes or forced heirship laws. For the surviving beneficiaries, ignorance of the testator is certainly not bliss in this regard.

What makes matters worse is that a Deed of Variation is not being accepted by most European tax authorities. Instead, using such a Deed of Variation will in most cases be considered a second taxable event, i.e. a gift from the beneficiary mentioned in the Will to the person benefitting from the Deed of Variation. This may trigger additional gift tax. Thus, professional IHT planning is even more important in international constellations, because the content of an English (or US American) will can’t be changed anymore even if the tax consequences later turn out to be unpleasant. More on this here: Deed of Variation and International Succession

Seminars for Lawyers and Accountants with International Clients

Since 2003, the succession and tax lawyers of Graf & Partner specialise in international estate planning and will preparation with a strong focus on British-German, American-German, British-Austrian and American-Austrian inheritance cases and probate applications. We also know our way around the succession and inheritance tax laws of France and Spain.

German succession and inheritance tax law expert Bernhard Schmeilzl regularly gives presentations and conducts inhouse seminars for British and American lawyers and accountants who advise clients who possess foreign assets or who have relatives abroad who shall inherit or receive gifts or legacies. More on these seminars here: Advising Clients with Assets Abroad

For more information on German-British probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:

Or simply click on the “German Probate” section in the right column of this blog.

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.